Thursday, September 6, 2007
U.S. Citizenship and Immigration Services is publishing an interim final rule that grants immigrant benefits to certain victims of crimes who will assist government and law enforcement officials in investigating or prosecuting the criminal activity.
“U” Nonimmigrant Status is set aside for victims of crimes who have suffered mental or physical abuse because of the crime and who not only have information regarding the activity, but also are willing to assist government officials in the investigation of the criminal activity. USCIS can grant up to 10,000
U-visas each year authorizing the holder to remain in the United States for up to four years.
Congress created the “U” nonimmigrant classification with passage of the Victims of Trafficking and Violence Protection Act (including the Battered Immigrant Women’s Protection Act) in October 2000. The legislation was intended to strengthen the ability of law enforcement agencies to investigate and prosecute cases of domestic violence, sexual assault, trafficking of aliens and other crimes while, at the same time, offering protection to victims of such crimes. The legislation also helps law enforcement agencies to better serve immigrant crime victims.
QUESTIONS AND ANSWERS:
Q: How does one become eligible for U nonimmigrant status?
A: There are four statutory eligibility requirements: (1) the individual must have suffered substantial physical or mental abuse as a result of having been a victim of a qualifying criminal activity; (2) he/she has information concerning that criminal activity; (3) he/she has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the crime; and (4) the criminal activity must have violated the laws of the United States or occurred in the U.S.
Q: What qualifies as a “criminal activity?”
A: Qualifying criminal activity is defined by statute as that being an activity involving one or more of a long list of activities that violate Federal, State, or local criminal law – from murder, rape, torture, sexual exploitation, and extortion to witness tampering, obstruction of justice, false imprisonment, etc. This is not an exclusive list – in fact, the list of qualifying crimes represents the myriad types of behavior that can constitute domestic violence, sexual abuse, trafficking, or other crimes which vulnerable immigrants are often targeted.
Q: What are the procedures to request U Nonimmigrant status?
A: Alien victims of crime must file a Petition for U Nonimmigrant Status (Form I-918). The form requests information regarding the petitioner’s eligibility for such status, as well as admissibility to the United States. Currently, USCIS has designated its Vermont Service Center as the centralized location to receive all U Nonimmigrant petitions. Such centralization will allow USCIS officials to develop expertise in handling U nonimmigrant petitions.
Q: So, you’re saying that any alien can say they’re a victim of a crime and apply for this special status?
A. Not quite. The petition for U nonimmigrant status must be filed by the alien victim and also contain a certification of helpfulness from a certifying agency. That means the victim must provide a U Nonimmigrant Status Certification (Form I-918, Supplement B) from a federal, state, or local law enforcement official that demonstrates the petitioner “has been helpful, is being helpful, or is likely to be helpful” in the investigation or prosecution of the criminal activity. Further, either the head of the agency or a supervisor designated with the authority to issue certifications on behalf of the agency must sign the certification.
Q: What qualifies as a “certifying agency”?
A. Certifying agencies include federal, state, or local law enforcement agencies, or a prosecutor, judge, or other authority that has responsibility for the investigation or prosecution of the criminal activity. The rule also includes other agencies such as child protective services, the Equal Employment Opportunity Commission, and the Department of Labor, since they have criminal investigative jurisdiction within their respective areas of expertise.
Q: What makes this any different from the other nonimmigrant classifications, such as T immigrant?
A. Other nonimmigrant classifications such as “T,” require an alien’s physical presence in the United States as a condition of eligibility. USCIS has determined that the statutory framework for U nonimmigrant status permits alien victims of qualifying criminal activity to apply for such status from inside or outside the U.S.
Q: Can family members of the petitioner apply for U Nonimmigrant status?
A. While family members who accompany the petitioner can, under certain circumstances, obtain U nonimmigrant status, they cannot apply on their own behalf. The principal petitioner (alien victim) must petition on behalf of qualifying family members. If the principal petitioner is less than 21 years of age, qualifying family members include the principal’s spouse, children, unmarried siblings under 18, and parents. If the principal is 21 or older, qualifying members include the spouse and children of the principal. In order for a family member to obtain U nonimmigrant status, they must (1) be a qualifying family member (as described above), and (2) must be admissible to the U.S.
The principal petitioner can file Form I-918, Supplement A, on behalf of their qualifying family members.
Q: Is there a cap on the number of U Nonimmigrant Status grants the agency can approve?
A: USCIS may grant not more than 10,000 principal aliens U nonimmigrant status in any given fiscal year (October 1 through September 30). This limitation, however, does not apply to spouses, children, parents, and unmarried siblings who are accompanying or following to join the principal alien victim.
The interim final rule will be available for public comment at www.regulations.gov until 60 days after publication in the Federal Register. More information on the new classification, plus instructions on submitting comments, is available in accompanying fact sheets.